Opinion
No. 43/261.
07-26-1917
WARNE v. GREENBAUM.
August C. Streitwolf, of New Brunswick, for complainant. Leo Goldberger, of Perth Amboy, for defendant.
Action by Grace Warne against Adolph Greenbaum. Decree for complainant.
August C. Streitwolf, of New Brunswick, for complainant. Leo Goldberger, of Perth Amboy, for defendant.
FOSTER, V. C. This bill is filed for the specific performance of a contract dated November 18, 1916, made by the parties for the purchase and sale of certain real estate in the city of Perth Amboy.
The case has been submitted on an agreed state of facts, from which it appears that complainant, a widow, by the contract in question, agreed to sell and convey to defendant the premises described in the bill for $10,450, subject to a mortgage for $5,000, and that on ths execution of the contract a payment of $500 was made on account of the purchase price. The balance of the price was to be paid and "a free and clean warranty deed for the property" was to be delivered by March 1, 1917. On this date a warranty deed, containing the usual covenants, duly executed by complainant, conveying the property to defendant, was tendered to defendant, and he refused to accept the same on the ground that complainant was not the owner of the fee of said premises, and that certain undivided rights therein were vested in the heirs of William Bennett, deceased, unknown and outstanding.
William Bennett at the time of his death in 1800 owned the premises in fee. By his will, not dated, but made in 1790, and probated in the Prerogative Court in 1800, he devised the premises under the following paragraph of his will:
"I give and bequeath all my estate, real and personal that shall be remaining after the aforesaid conditions and orders be fully observed to my son William and his heirs and assigns forever, and if it should so happen that my said son should die, or not have lawful issue of his body, before he shall arrive at the age of twenty-one years, then and in such case all my estate to my said son William hereby bequeathed shall descend to my brothers and sisters' sons in manner following, that is, one moiety or one-half part to the sons of my brother, Hendrickson William Bennett, and one-fourth part to the sons of my brother-in-law Walter Stires." (Also known as Walter Hires.)
The son William Bennett was an idiot, and he died unmarried in 1865, and by the terms of his father's will the sons of Hendrickson W. Bennett and Jacobson W. Bennett and of Walter Stires (or Hires) or their lawful issue became seised of the premises, and some of them made a deed for their interest in the premises to Joseph Imlay in 1866, and to Henry S. Little in 1867, the last named having acquired all of Imlay's rights in the premises. On April 1, 1871, Henry S. Little conveyed the premises to Hezekiah Warne and Abraham Warne. On February 2, 1878, Hezekiah Warne and wife conveyed their interest in the property to Abraham Warne. All these deeds were duly recorded. Abraham Warne died intestate seised of the premises on July 21, 1883, leaving his widow, Cornelia Warne, and his sons, Wood Warne, Abraham Warne, and Elmer Warne, surviving, all residents of Matawan in this state. Cornelia Warne was granted letters of adminis(ration,and she died in 1893, and thereafter Wood Warne died, leaving a widow, Mary Warne, now deceased. On March 21, 1893, Abraham Warne, unmarried, conveyed all his right, title, and interest in the premises to his brother Elmer. On June 12, 1913, Elmer died testate, and by his will duly probated, he devised the property to his widow, Grace Warne, the complainant.
It is admitted that complainant, her prior grantors, and those in devolution of interest in succession to the title, commencing from the deed into Henry S. Little on July 3, 1867, have remained in the undisturbed, quiet, and peaceable enjoyment of the premises, and that the Warne family have remained in the continued, quiet, and peaceable enjoyment thereof since the deed into Abraham and Hezekiah Warne, dated April 1, 1871, and have been holding adversely to any devisees or heirs of such devisees named in the will of William Bennett. It is further admitted that there are several unknown heirs of the sons of Hendrickson W. Bennett, Jacobson W. Bennett, and Walter Stires (or Hires), whose names and addresses are unknown, who were not parties to any of the deeds mentioned, and who have a vested interest in the premises by virtue of their heirship. Defendant contends that the outstanding interests of these unknown heirs render complainant's title incomplete and prevent her from owning the premises in fee, and that these outstanding interests render the title unmarketable. Complainant's answer is that by reason of the continuous and uninterrupted possession of herself and her predecessors in title since April 1, 1871, her title is complete and marketable, and that defendant should be required to perform the contract by paying the balance of the purchase price and accepting a deed for the property. The question thus presented for determination is the validity of the title acquired by complainant through adverse possession against the interests of the unknown heirs mentioned.
From the facts stated, and in the absence of any statement to the contrary, it appears that complainant and those under whom she claims have been under color of title in the open, continuous, undisputed, peaceable, and adverse possession of the premises she agreed to sell and convey to defendant, for more than 45 years; and no claim is made that her, or their, right or title thereto was ever questioned, or that the unknown heirs, or any of them, were under any disability that would prevent them from asserting their rights to, or from claiming any interest in, the premises to which they might be entitled. Such being the situation, it must be controlled by the rule of Foulke v. Bond, 41 N. J. Law, 527, where Mr. Justice Depue, speaking for the Court of Errors and Appeals, at page 545, observed:
"The principles on which the doctrine of title by adverse possession rests are well settled. The possession must be actual and exclusive, adverse and hostile, visible or notorious, continued and uninterrupted. * * * A party relying on title derived from such a source must prove possession in himself, or in those under whom he claims, of such a character as is calculated to inform the true owner of the nature and purpose of the possession to which the lands are subjected."
In the absence of any facts to the contrary, and in view of the fact that complainant and her predecessors entered under color of title and openly and continuously used and enjoyed the entire property, it must be assumed that they did so with the intent to claim adversely to the unknown heirs, and therefore the further statement of the law by Justice Depue on this branch of the subject is particularly appropriate to the present case, for he said:
"That entry under color of title confers an advantage, in that it operates, under some circumstances, as a disseisin, and determines the quo animo with which the entry was made. Having color of title is also advantageous to the disseisor in giving character to his possession after entry made.
The rule of Foulke v. Bond has been repeatedly followed in our courts to the present time; and, as the facts presented show title in complainant by adverse possession, against the unknown heirs referred to, a decree will be advised for the specific performance of the contract.